On television last night Mr Vavi, general secretary of Cosatu, challenged anyone to show him the clauses of the labour laws that inhibit job creation.   Mr Vavi misses the point; there are very few specific clauses that are objectionable.   Potential job creators and employers, mainly the smaller ones, and ultimately job-seekers, are victims of persons, who should know better, in failing to understand, interpret and apply the labour laws properly.

Labour law as such hardly existed before 1979.   I know because I practised as an attorney and advocate for some 15 years before the government of the day introduced the notion of an ‘unfair labour practice’.   Labour law was not taught as a separate discipline at university until the early 80s.   The common law treated the employment contract like any other commercial contract.   Either party could terminate the contract unilaterally on reasonable notice.   It could also be cancelled without notice, but then the party who did so had to prove clearly and  convincingly that there was a material breach of contract.   But such proof was only required if the other party alleged wrongful breach of contract.

After 1979 the only real change concerning termination of employment was that employers had to

  • follow a fair procedure; and
  • provide a valid and fair reason to dismiss.

Employers can still dismiss on notice when employees are no longer required by the business (operational requirements).   There is no legal requirement of ‘fault’.   What really counts is whether continued employment becomes ‘intolerable’ and employers can show that the

  • employee’s behaviour has seriously damaged the trust relationship; or
  • employer’s confidence has been destroyed or seriously damaged by the employee’s capability to do the job (such as performance, health or injury).

The employer’s right to instantly dismiss related to material breach of contract has not been removed by law, subject to proof thereof.   The common law and the Basic Conditions of Employment Act (“BCEA”) preserve and reinforce the right of any dismissed employee to reasonable notice pay and, in some instances, severance pay.

In 1919 South Africa became a founder member of the International Labour Organisation (“ILO”).   It was only in 1963 that a Recommendation was issued concerning termination of employment.   This was converted by the ILO into a Convention in 1982 and strangely enough South Africa has not yet ratified it.   The Convention of 1982 makes it very clear that the employer’s right to dismiss is not dependent on any  requirement of ‘fault’.   Dismissed employees only forfeit all rights to notice and severance benefits when their conduct is gross or serious.   This provision of the Convention aims at balancing the legitimate rights of both parties and is what seems to be misunderstood in South Africa.

Couple this misunderstanding of the labour laws with the ‘hassle factor’ of complying with all the legal procedures and any sensible employer will simply give up trying to create more jobs, or better still, careers.   Sensible employers will confirm that they are not advocating dismissal for reasons that are invalid, unlawful or unfair.    It also needs to be understood that most employers who become disillusioned by labour law are unlikely to make a fuss.   They will simply ‘walk away’ just as a consumer does when deciding to shop at a different place.

It must also be understood that over the last 30 years a vast industry has developed over the interpretation and application of labour laws.   Many thousands of jobs have been created since the notion of ‘fairness’ was introduced by the Nationalist government.   Instead of allowing the common law to be developed by judges to include more rights for employees, a statutory right to ‘fair labour practice’ was introduced.   This is what opened the floodgates and created not only thousands of jobs for human resource practitioners, judges, advocates, attorneys, lawyers, university professors, lecturers, arbitrators and also the publishing industry.

Unenlightened employers do the following to hapless employees who are alleged to have provided a reason for dismissal.   Such employers prepare a ‘charge sheet’ and accuse the employee of some ‘offence ‘such as insubordination or failing to report on time.   The employee is ‘summoned’ to a ‘hearing’ where the employee is required to plead ‘guilty’ or ‘not guilty’ to the ‘offence’.   The employee is usually found ‘guilty of the offence’ and punished with the ‘sanction’ of  instant dismissal.

Labour law properly understood only requires employers to investigate incidents that require some form of enforcement of discipline, including termination of employment when necessary.   A proper investigation includes the employee’s right to be heard.   For gross misconduct employers may dismiss instantly thereafter.   If there is a valid and fair reason to dismissal related to behaviour or performance the dismissal will only be lawful if reasonable notice, or payment instead thereof, is given to the employee.

Imagine if society did to the ‘misinterpretors’ what many employers do to their employees.   Society could  ‘charge’ them and accuse them of failing to interpret and apply labour laws correctly.   They would be required to plead ‘guilty’ or ‘not guilty’ and after a hearing chaired by members of society, be found ‘guilty as charged’.   The ‘sanction’ could be compensation for the harm caused to society in general by the complete waste of money spent on fees of various kinds and the cost to taxpayers of staffing the CCMA and the labour courts let alone the universities.   Such compensation does not even begin to cover the cost to the country of recording all the decisions and then publishing them in various law reports and requiring students to study the awards and judgments and scholars to write journal articles about the judgments.

Fortunately a few judges, such as justices Van Niekerk and Steenkamp in the labour court, have stressed that internal disciplinary investigations should not take the form of criminal trials and that the language used in criminal proceedings should be avoided by all employers.   But it is taking a long time for such messages to sink in and perhaps a successful claim based on defamation is needed for reality to dawn.

Who knows but it will be interesting to see how the Judicial Services Commission deals with the alleged misbehaviour concerning Judge President Hlophe and what language is used when framing the complaints.   Bear in mind that only the police and the prosecuting authorities are protected from defamation claims when they act honestly and in good faith.